Dependent Indian Communities: Existential Determination Impacts State and Federal (and Tribal?) Jurisdiction

On June 15, 2015, the New Mexico Supreme Court issued a decision that clarified the Indian country status of a certain parcel of land in New Mexico that had been the subject of conflicting state and federal court decisions.  In State of New Mexico v. Steven B.,1 the New Mexico court held that the lands were not part of a “dependent Indian community,” as that term is used in 18 U.S.C. § 1151, and are therefore subject to state jurisdiction.  The decision clears the way for New Mexico to prosecute criminal offenses committed on Fort Wingate’s Parcel Three lands on which the Wingate High School and an adjacent staff housing area administered by the Bureau of Indian Affairs (BIA) sit.  Administration of the school itself is shared among the BIA, the Navajo Nation, and the State of New Mexico.

Definition of “Indian country”:

18 U.S.C. § 1151 is a section of the United States criminal code and defines the term “Indian Country,” over which the United States has jurisdiction to prosecute certain major crimes occurring within “Indian Country.”  The definition, like Gaul, is divided into three parts: (a) Indian reservations; (b) dependent Indian communities; and (c) allotments to individual Native Americans.  Initially used only for allocating criminal jurisdiction between states and the federal government, Congress has borrowed the “Indian Country” definition to allocate (and delegate) regulatory authority between the federal government and tribes on the one hand, and states on the other hand.

New Mexico Supreme Court’s Analysis:

In considering whether the Fort Wingate lands were a dependent Indian community, the New Mexico Supreme Court applied the two prong test developed by the United States Supreme Court in Alaska v. Native Village of Venetie Tribal Government.2  In Venetie, the Court said that for lands to be considered a dependent Indian community, two requirements must be met.  The lands “must have been set aside by the Federal Government for the use of the Indians as Indian land [, and] must be under federal superintendence.”3  In Steven B., the parties did not dispute a lower court’s conclusion that the lands were “under federal superintendence.”  Therefore, the parties and the court focused attention on whether the lands had been “set aside by the Federal Government for the use of Indians as Indian land.”4

Following its own analysis from an earlier case, State v. Quintana,5 the New Mexico Supreme Court initially narrowed the question further, saying that for lands to have been “set aside” for purposes of a dependent Indian community determination there must have been “some explicit action taken by Congress or the Executive to create Indian country.”  On that issue, the court answered the question in the affirmative.  The court said that the 1950 Act of Congress transferring jurisdiction of the lands from the Department of Defense to the BIA constituted the “explicit action” meeting the applicable standard.

Thereafter, the New Mexico court focused on whether the lands were set aside “for the use of the Indians as Indian land.”  The parties disagreed on the type of “use” sufficient to meet Venetie‘s first prong.  New Mexico argued that lands must be “set aside” for “permanent inhabitation [by] a distinct group of Indians.”6 The criminal defendants advanced a broader view of “use.”

With the stage set, the New Mexico Supreme Court undertook a comprehensive historical review of the United States Supreme Court’s early dependent Indian community decisions preceding the statutory codification of “Indian country” in 18 U.S.C. § 1151 in 1948.   Following that review and a detailed discussion of Venetie, the New Mexico Supreme Court concluded that “the ‘use’ envisioned by Congress when it enacted § 1151(b) was the sort of occupancy associated with long-term settlement by an Indian community.”7

Because a set aside for the BIA does not meet this standard, the New Mexico court concluded that Parcel Three at Fort Wingate did not constitute a dependent Indian community.8  The court supported its conclusion with a discussion of the roles that the State and County play in administering certain school activities and in providing services to the school and housing area.  The New Mexico court did not address assertions by the Navajo Nation and the United States concerning civil and other jurisdictional matters.

Why does this matter?

As noted, Congress and courts have borrowed the “Indian country” definition in Section 1151 and used it for other purposes. Therefore, while this case presented issues regarding criminal jurisdiction, the analysis may have implications in other areas, including whether certain lands are within federal delegations of regulatory powers to Native American groups.  Further, Indian tribes continue to assert inherent civil, taxing and regulatory authority over Indian Country.


  1. 1. 2015-NMSC-020, ___ P.3d___.
  2. 2. 522 U.S. 520 (1998).
  3. 3. Id. at 527.
  4. 4. As amicus curiae, the United States argued that the “federal superintendence” of the Fort Wingate lands was not the type of superintendence intended to confer federal criminal jurisdictional powers.  Because the parties did not contest this issue, neither did the New Mexico Supreme Court.
  5. 5. 2008-NMSC-012, 178 P.3d 820.
  6. 6. Id. *9 (quoting United States v. M.C., 311 F. Supp. 2d 1281, 1295 (D.N.M. 2004)).
  7. 7. Id. *27 (emphasis added).
  8. 8. Parcel Three stands in contrast to Parcel One at Fort Wingate which is held in trust by the federal government for the Navajo Nation and administered by the BIA.

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